# State v. George > Supreme Court of Arkansas · June 21, 1971 · 250 Ark. 968 URL: https://www.frixlaw.com/law-library/cases/7818519 ## Case - **Full name:** STATE of Arkansas v. C. R. GEORGE - **Court:** Supreme Court of Arkansas - **Decided:** June 21, 1971 - **Citations:** 250 Ark. 968; 470 S.W.2d 93; 1971 Ark. LEXIS 1362 - **Precedential status:** Published - **Opinion:** On rehearing by Brown - **Judges:** Arnold, Brown, Bryd, Byrd, Supplemental - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7818519 ## How later opinions describe it (automated extraction) - concluding that where the attorney election method of art. 7, § 21 was inapplicable, the exchange of circuits upon agreement of the judges or the assignment of another circuit judge by the Chief Justice were alternate methods of selecting a judge ## Opinion text Supplemental opinion on denial of rehearing Delivered September 20, 1971 Alex G. Streett, for petitioner. Nathan Gordon, for respondent. Lyle Brown, Justice. The original opinion in this case was handed down on June 21, 1971, and appears in 250 Ark. 968 . Appellant timely filed a petition for rehearing and asked that we reconsider thát part of the opinion which would permit Judge Russell Roberts to exchange circuits with another judge. See art. 7, § 22, of our constitution. On rehearing we have been furnished with citations of authority not previously mentioned in the briefs. Those citations, coupled with our additional research, lead us to the conclusion that appellant’s argument on rehearing is well taken. The rule of law which governs the question before us may be succinctly stated: A trial judge should not exercise the discretionary powers of his office in a matter in which he will be personally affected. Judge Roberts, in choosing a judge with whom to exchange, will not be performing a purely ministerial act, but will be selecting a judge based upon Judge Roberts’s own judgment—it would clearly constitute an act of discretion. The subject matter which occasions the selection of another judge unquestionably affects Judge Roberts’s personal interests. Our conclusion is supported by the common law, by our constitution, by statute, and by the canons of judicial ethics. The Common Law. We said in Morrow v. Watts, 80 Ark. 57 , 95 S. W. 988 (1906), that by common law interest of a judge of a court of record was ground for disqualification. The Constitution. Article 7, § 22, provides that “the judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such ■regulations as may be prescribed by law.” But that section must be read in conjunction with § 20 in the same Article, which says that “no judge or justice shall preside in the trial of any cause in the event of which he may be interested.” In the strictest sense Judge Roberts would not be “presiding at a trial” when entering an order making an exchange of circuits. However, the selection of a judge is an integral part of the entire proceeding and, consistent with our well-established practice, we give a broad and liberal scope, rather than a technical or a strict meaning to the word trial. Black v. Cockrill, 239 Ark. 367 , 389 S. W. 2d 881 (1965); Byler v. State, 210 Ark. 790 , 197 S. W. 2d 748 (1946). By so doing “the courts may achieve impartiality in the minds of the public as well as impartiality in fact.” Copeland v. Huff, Judge, 222 Ark. 420 , 261 S. W. 2d 2 (1953). We have previously held that Article 7, § 20, required the disqualification of a judge in matters involving the exercise of judicial discretion when his personal rights were concerned. Ladd v. Stubblefield, 195 Ark. 261 , 111 S. W. 2d 555 (1939). While pecuniary interests of the judge were involved in that case, there is no sound reason why the principle should not apply with equal force where, as here, individual rights other than pecuniary or property rights are involved. Statutory Law. Under the provisions of Ark. Stat. Ann. § 22-113 (Repl. 1962) a circuit judge is prohibited from presiding over the “determination of any cause or proceeding in which he may be interested . . .” This court undoubtedly had this statute in mind, as well as art. 7, § 20, when it was faced with a similar situation in Rowland v. State, 213 Ark. 780 , 213 S. W. 2d 370 (1948). There it was said that a regular presiding judge could not select a judge by exchange if the regular presiding judge was a litigant in the pending cause. It is true that such statement was dictum but the fact that it was approved by a unanimous court is significant. It was indicative of the way in which this court might well hold when the question squarely presented itself. We do not agree with respondent’s argument that the Rowland dictum is inapplicable in this case because Judge Roberts is not yet, strictly speaking, a “litigant.” We find no logical reason why the principle of the Rowland dictum should govern only after the judge involved has technically become a party to an adversary proceeding and not when he is exercising, or called upon to exercise judicial discretion in matters where his personal rights will be affected. When we give the words of the statute a broad and liberal scope, as we do in construing statutory law relating to disqualification of judges, it can hardly be doubted that an exchange of circuits is a “proceeding” in the determination of which Judge Roberts is interested. See Wimberly v. State, 90 Ark. 514 , 119 S. W. 668 (1909), and definitions of “proceeding” in Webster’s New International Dictionary, Second and Third Editions. Canons of Judicial Ethics. In our publication styled “Miscellaneous Rules of the Supreme Court,” published in January 1963, are found the canons of judicial ethics adopted by this court (after their adoption by the Arkansas Judicial Council in September 1958). Section 29 thereof provides that “A judge should abstain from performing or taking part in any judicial act in which his personal interests are involved.” That is not only, in essence, a statement which harmonizes with the law as we view it, but it tends to promote the appearance of impartiality as mentioned in Copeland v. Huff, supra. An apt statement of the principle is found in 46 Am. Jur. 2d, Judges § 86: The law goes further than requiring an impartial tribunal; it also requires that the tribunal appear to be impartial on the theory that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. ... It is also for the purpose of the appearance of impartiality that where grounds for disqualification exist, a judge should disqualify himself. Respondent places his principal reliance upon Evans v. State, 58 Ark. 47 , 22 S. W. 1026 (1893). We do not consider that case to be either controlling or persuasive. There the disqualification pf the judge arose from his relationship to a “party.” Here the disqualification results because the proceedings affect the individual rights of the judge. We have long recognized that the latter basis is within the purview of our constitutional provisions that require no statutory implementation as is the case when the basis is relationship to a party. Foreman v. Town of Marianna, 43 Ark. 324 (1884); Osborne v. Board of Improvement of Paving District No. 5, 94 Ark. 563 , 128 S. W. 357 (1910); Morrow v. Watts, supra. Respondent also argues that, if the assignment of a judge under Act 496 of 1965, Ark. Stat. Ann. § 22-342, et seq. (Repl. 1962), is the only proper method of procedure under prevailing circumstances, there was a 91-year hiatus after the adoption of our present constitution during which there would have been no means of acting when the regularly elected judge was disqualified in a situation similar to that now presented. We need not consider what might have happened during that 91-year period or speculate on the reasons for legislative inaction. The General Assembly has wisely made provision for this contingency through Act 496. We did hold in Morrow v. Watts, supra, that failure of the legislative branch to act where implementation was called for by the express language of the constitution might make the provision for disqualification inoperative. We did not hold that even that provision was permanently atrophied nor have we ever said that a common law disqualification could be negated merely by legislative inaction. Nothing contained herein should be taken as preventing a proper transfer, by a disqualified judge, of any proceeding to a division of the same court which is existing and permanent but over which he does not preside. The last two paragraphs of the original opinion are deleted, beginning with the statement, “Our interpretation of Section 21 . . .” and this supplemental opinion is substituted for the deleted portion. This action does not disturb the order granting the writ. Byrd, J., not participating. William S. Arnold, Special Justice, joins in the supplemental opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7818519. Public record. Not legal advice.